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Bejar v. Gibson

United States District Court, D. Kansas

July 18, 2014

JOSE M. BEJAR, Plaintiff,
v.
SLOAN D. GIBSON, SECRETARY OF UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, [1] Defendant.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Plaintiff brings this employment discrimination and retaliation action against his employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This matter comes before the Court on defendant's Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 19). Defendant argues that the Court must dismiss plaintiff's First Amended Complaint because it lacks subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and fails to state a claim under Fed.R.Civ.P. 12(b)(6). After considering the arguments made by both parties, the Court grants defendant's Motion to Dismiss.

I. Background

The following facts are taken from plaintiff's First Amended Complaint and viewed in the light most favorable to him. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) ("We accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the [plaintiff].") (quotation omitted). The Court notes that defendant's motion cites to factual allegations contained in plaintiff's original Complaint. But "it is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect." Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (quotation omitted); see also 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1476 (3d ed. 2010) ("A pleading that has been amended... supersedes the pleading it modifies.... Once an amended pleading is interposed, the original pleading no longer performs any function in the case.") The Tenth Circuit has explained that once an amended complaint is filed, it is proper for the district court to limit its examination only to the claims that are included in the amended pleading. Franklin v. Kansas Dep't of Corr., 160 F.Appx. 730, 734 (10th Cir. 2005). "However, pursuant to Rule 10(c), specific allegations of the prior complaint may be referenced or incorporated by the amended complaint, but only if reference to allegations in the prior complaint is direct and specific." Fullerton v. Maynard, 943 F.2d 57, 1991 WL 166400, *2 (10th Cir. Aug. 29, 1991) (unpublished table opinion) (citations omitted).

Here, plaintiff's First Amended Complaint makes no direct references to specific allegations in his original Complaint or to the documents which plaintiff attached to his original Complaint. Consequently, the First Amended Complaint supersedes the allegations in the original Complaint. Therefore, when analyzing defendant's motion under Fed.R.Civ.P. 12(b)(6), the Court has examined only the factual allegations contained in the First Amended Complaint.

Plaintiff was hired as a neurologist by defendant on January 28, 1988. At some point before December 23, 1996, plaintiff filed an Equal Employment Opportunity ("EEO") complaint alleging that defendant was discriminating against him based on his national origin (Ecuadorian). Afterwards, defendant required plaintiff to undergo psychiatric evaluation, placed him on administrative leave, and suspended his privileges as a physician. On December 23, 1996, plaintiff filed a second EEO complaint alleging that defendant was discriminating against him based on his national origin and retaliating against him for filing the first EEO complaint by suspending his privileges. On June 29, 1999, plaintiff and defendant entered into a settlement agreement that resolved his discrimination and retaliation claims.

Beginning in 2007, plaintiff filed at least five additional EEO complaints alleging that defendant was discriminating against him based on his race and national origin and retaliating against him because of his earlier EEO complaints. These five additional EEO complaints were filed on July 27, 2007, September 7, 2007, December 21, 2007, May 5, 2010, and October 19, 2010.

On July 7, 2011, plaintiff filed an EEO complaint[2] that gives rise to the allegations in this lawsuit. That EEO complaint alleged that defendant was discriminating against plaintiff by assigning him extra work and using a female patient to "frame him up" for unprofessional conduct.[3] Plaintiff alleged claims of discrimination based on race and national origin and retaliation for filing previous EEO complaints.

The ordinary policy and procedure of defendant's primary care unit is to assign male patients to male doctors and female patients to female doctors. Plaintiff alleges that he was regularly assigned female patients in violation of the policy and despite the availability of a female neurologist on his team. Plaintiff contends that the female patients assigned to plaintiff were "typically severely psychiatrically disturbed" and that many of the female patients made sexual advances towards plaintiff during his examinations. Plaintiff denies that he indulged any of the patients' sexual advances.

Plaintiff's immediate supervisor, Dr. Hedge, directly assigned patients to plaintiff. Plaintiff claims that the ordinary policy and procedure of defendant's primary care unit is for clerks to assign patients to physicians. Therefore, plaintiff alleges that Dr. Hedge's assignments to plaintiff contravened the normal policy and procedure and that Dr. Hedge designed them to elicit a complaint against plaintiff by one of the female patients. On some unidentified date, plaintiff requested that defendant assign female patients to the female neurologist, in conformity with defendant's ordinary policy and procedure, but he claims that defendant ignored his request. Plaintiff also asked defendant to have a nurse present whenever he examined female patients, but he alleges that defendant ignored this request as well.

Plaintiff contends that defendant's motivation for assigning female patients to him was to discriminate based on race and national origin and to retaliate for his prior EEO complaints. Plaintiff claims that the doctors in his "entire chain of command" are from India, and he contends that the Indian physicians favor each other and treat physicians of other nationalities as inferior. Plaintiff further contends that these physicians created an environment where the nurses and staff also treated physicians of other nationalities as inferior.

Defendant informed plaintiff that on September 30, 2011, a patient had complained that plaintiff had inappropriately touched her during an examination. Plaintiff believes that this patient was "MH." Plaintiff asserts that her complaint is not credible. Plaintiff contends that defendant did not investigate the matter, but instead suspended his privileges as a physician on October 3, 2011.

In his First Amended Complaint, plaintiff alleges that defendant persuaded MH to file a false complaint against plaintiff in an effort to "frame" him, or alternatively, even if defendant did not persuade MH to file a false complaint, defendant violated its ordinary policy by assigning him to a female patient that allowed the patient to make a false complaint. Plaintiff also contends that defendant encouraged MH to file a complaint without investigating the legitimacy of her allegations. Plaintiff contends that his race, national origin, and prior EEO complaints were motivating factors in defendant's actions.[4]

II. Legal Standard

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

"Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted). Federal district courts have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28 U.S.C. § 1331; 28 U.S.C. § 1332. "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation omitted). Since federal courts are courts of limited jurisdiction, there ...


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